So, let’s come to the central element of the actus reus: ‘killeth’ or causing the death of the victim. Now, because murder is a result crime, it must be proved in each case that the defendant’s actions were the cause of the victim’s death. If the prosecution cannot link the defendant’s conduct to the death, then the defendant must be acquitted. In other words, the prosecution must show that but-for the defendant’s conduct, the victim would not have died. The case of , where the ‘but-for’ cause was the heart attack not the poison, illustrates this point.
Here, the defendant son put potassium cyanide in a drink intending it to kill his mother, who was found shortly afterwards with the drink three parts full. An ordinary everyday event, you may think! In fact, the mother had died of a heart attack unconnected with the poison. Thus, the son was found not guilty of murder although the consequence of what the son had intended - his mother’s death - had occurred. Naturally, he was found guilty of attempted murder.
One very important point here: the test for causation in law is that the actus reus must have been the substantial and operating cause of the victim’s death. So, what does ‘substantial’ mean? It means that the defendant must only be shown to have more than minimally accelerated the death of the victim. In other words, the actus reus must be a significant cause of death. As the court stated in , ‘the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result’.
To repeat: it is not necessary to show that the defendant was the sole cause of the death provided that the defendant was a significant contributory cause. So, the fact that others contribute to the victim’s death or that the victim himself plays a contributory part is irrelevant. Let’s look at a case example on manslaughter where the issue of causation is the same as that of murder.
In , the defendant prepared a syringe with a mixture of heroin and water and handed it to a friend, encouraging him to inject himself. This the friend did and the injection proved to be fatal. The defendant was convicted of manslaughter.
You may note that I mentioned that the causation must be ‘operative’. What this means is that if something intervenes between the actus reus and the death - and it can be shown that the intervening event was the operative cause of death - then usually the defendant is not guilty. For example, in WHITE, the intervening event was his mother’s heart attack.
However, the intervening event must be overwhelming so as to make the actus reus pretty well irrelevant. For example, if I commit a section 18 OAPA offence against you and you are rushed to hospital where your life could have been saved were it not for a short delay in diagnosing your injury, then I would still be guilty of murder.
Now, there are three exceptions to the rule that the actus reus must be the operative cause of death. Firstly, a defendant will have caused a death if it occurs as a natural consequence of his act. Consider the difficult case of PAGETT. Here, the defendant armed himself with a shotgun and took a pregnant girl hostage in a flat. The police besieged the flat and called on the defendant to come out. He eventually did so, holding the girl in front of him as a human shield. He then fired the shotgun at the police officers who returned fire, striking and killing the girl hostage. The defendant was convicted of manslaughter.
He was held to be the cause of the girl’s death because the court felt that the actions of the police did not break the chain linking the defendant’s conduct - holding the girl as a shield - to her death. Their actions did not break the chain because they were reasonable acts of self preservation or defence and/or because they were analogous to involuntary acts done in performance of a legal duty; and that, since shooting back at the defendant was a natural consequence of his having shot first, he remained responsible.
I must confess that I find it difficult to see why the police response was a natural one foreseeable as likely to happen in the ordinary course of events or why it was a reasonable act of self preservation: the police could have withdrawn, surely? Clearly, the decision not to prosecute the police was a policy decision.
The second exception to the rule is that if the defendant’s conduct is not the operative cause of death but an abnormality in the victim is, then the defendant has committed the actus reus. So, if I chase you down the street and, due to a heart condition, you have a heart attack and die, then I have killed you. You see, the courts have always held that a defendant must take a victim subject to his physical and mental condition. In tort, this is known as the ‘egg shell skull’ principle. In short, a defendant must always take a victim as he finds him.
A case that you may find astonishing here, is . The defendant had stabbed the victim 13 times, and she was rushed to hospital where doctors diagnosed a blood transfusion as being the only way to save her. The victim, a Jehovah’s Witness, refused and consequently died. The defendant was convicted of manslaughter.
So, the abnormality here was the fact that the deceased was a Jehovah’s Witness. To be frank, I do not care for the decision. In any event, you can see clearly that an abnormality can break the chain of causation - here, the girl’s refusal to have the transfusion, assuming that it would have saved her life - and still leave the actus reus operating. Interestingly, as Professor Williams said (Textbook of Criminal Law 1983), ‘The decision means that if the death penalty for murder were restored, the attacker might be hanged purely as a result of the unreasonable decision of the victim not to accept medical help.’
The third exception covers attempts to escape. So, if the defendant’s conduct is not the operative cause of death, but it causes the victim to try to escape from the defendant, then the defendant will be held to have committed the actus reus. We have seen an example of this principle in assaults - ROBERTS: do you remember the girl who jumped out of a car to avoid further assault?
Anyway, for fatal cases, the prosecution must show that the victim feared some physical harm, albeit not serious; and that the victim’s reaction was foreseeable according to a reasonable man, taking into account any abnormality in the victim. Further, a jury may take into account that in the agony of the moment, the victim may do the wrong thing. The Court of Appeal so ruled in , where the victim jumped to his death from a moving car in order to escape from the defendants who were attempting to rob him. As it happens, the defendants were acquitted on a technicality.
In the next lecture, we will consider the mens rea of murder.
HOMICIDE
2. MURDER - MENS REA
Coke’s definition of the mens rea of murder is that the unlawful killing is done with ‘malice aforethought’. However, contrary to what may be suggested by the ancient term itself, neither ill will nor premeditation is required, and malice aforethought is satisfied by either an intention to kill or an intention to cause grievous bodily harm. Incidentally, grievous bodily harm should be given its ordinary and natural meaning, that is to say serious bodily harm. So, for example, if I break you arm, intending to cause you GBH, and you subsequently die, then I am guilty of murder even though I did not want you to die.
You can see from this that harm is not restricted to harm likely to endanger life. As Lord Edmund-Davies commented in , ‘I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another’s arm, an action, which, while calling for severe punishment, would in most cases be unlikely to kill.’ I find it ‘passing strange’ as well, don’t you? In any event, as Lord Edmund-Davies said in the case, it is up to Parliament to change the law.
So far, so good. Now, it has taken six House of Lords decisions over the last twenty-odd years, and further statutory intervention, to clarify the mens rea of murder. So, I can firmly state the following propositions, of which the first three were covered in my lectures on mens rea in the other part of this Module and hence I will merely state them again without elaborating.
Firstly, murder requires intention, and nothing less will suffice - . So, forget anything to do with recklessness, here.
Secondly, section 8 provides that intention is a subjective test.
Thirdly, and , provide that it will be evidence of ‘malice aforethought’ if I foresee (or know) that death or grievous bodily harm are virtually certain to happen as a consequence of my act or omission, from which a jury may, but not must, find that I have intention.
Fourthly, MOLONEY provides that the mens rea of murder need not be aimed at a specific person. Therefore, a shot into a crowd and a bomb on an aeroplane will suffice. So will transferred malice - I aim to shoot you, miss and kill someone else. But constructive malice will not suffice, being abolished by section 1 .
For the sake of completeness, I will explain the doctrine of constructive malice. The doctrine provided that where a defendant caused death in the course of intending to resist arrest or while intending to commit a felony (an old name for a more serious offence), then that mens rea provided the mens rea for murder. So, for example, if the defendant killed the victim in the course of a robbery, the mens rea of robbery was sufficient mens rea for murder.
I would like to finish these two lectures on murder with a short discussion on the ‘interplay’ between mens rea and actus reus. We know that where the defendant kills the victim but lacks mens rea at the time of the conduct that caused death, then the defendant is generally not guilty. In other words, that the mens rea and actus reus must be concurrent.
However, what is the position where the mens rea was formed and an attack takes place, though the victim does not die until later when there is no mens rea, for example when, thinking the victim was already dead, the attacker in fact kills the victim whilst disposing of the ‘body’? I agree that this is an unlikely scenario but it happened in . Here, the four defendants, as part of a plan, attempted to kill the victim by hitting him over the head. Thinking the victim was dead, the defendants then rolled him over a cliff to fake an accident. The victim was alive when rolled over the cliff and died later from exposure. The defendants were found guilty of murder.
So, what do we make of this case? Well, it seems that if death is caused during a series of acts as part of a pre-conceived plan, then the earlier mens rea is sufficient for a conviction.
Inevitably, then, what if there is no earlier pre-conceived plan? It appears that the approach will be the same where the conduct which causes death was either undertaken in order to conceal the earlier conduct which was accompanied by mens rea; or where it is part of the same transaction, like FAGAN.
You can see this in another ‘disposal’ case, , where the defendant was found guilty when his conduct caused the death of his wife despite the fact that he lacked mens rea at the time that he killed her. He was guilty because, when he had hit her earlier, he had had mens rea and the act that caused her death was done in order to conceal his assault on her.
OK, folks, well that is murder. However, if you’re in a mood for some in depth thought about murder in the context of doctors going around wards injecting terminally ill patients with overdoses of pain relieving drugs in order to put them out of their misery (thereby creating extra bed space!), then read the article ‘’ NLJ August by Simon Cooper - it makes grim and thought provoking reading. In the next lecture we’ll take a peek at manslaughter.